Excerpt: - - as to the former he was in no better position than he had been when he was on record in the two previous execution petitions;.....he got delivery in 1911 and in 1913 he filed e.p. no. 67 of 1913, for mesne profits due under the decree. subba rao died while the appeal was pending and his mother was brought on record as his legal representative. she died before the execution petition was filed. in the execution petition, the brothers of subba rao were added as legal representatives and the father of subba rao, the third defendant in the suit was also made a counter-petitioner. the assets of subba rao, in their hands were attached. on 3rd november 1914, this execution petition was struck off the file with directions to the decree holder to renew it after the appeal against the first court's order was disposed of finally by the high court. on 16th november 1915 the decree-holder put in another e.p. no. 59 of 1915.....

Judgment:

1. This is an appeal against the order of the District Court, Ganjanl in a claim petition under Order 21, Rule 58, The circumstances briefly are as follows:

The plaintiff sued in 1903, for the recovery of certain lands, the chief defendant being one Subba Rao, the second defendant in the case. He got a decree which was confirmed by the High Court on appeal in 1909. He got delivery in 1911 and in 1913 he filed E.P. No. 67 of 1913, for mesne profits due under the decree. Subba Rao died while the appeal was pending and his mother was brought on record as his legal representative. She died before the execution petition was filed. In the execution petition, the brothers of Subba Rao were added as legal representatives and the father of Subba Rao, the third defendant in the suit was also made a counter-petitioner. The assets of Subba Rao, in their hands were attached. On 3rd November 1914, this execution petition was struck off the file with directions to the decree holder to renew it after the appeal against the first Court's order was disposed of finally by the High Court. On 16th November 1915 the decree-holder put in another E.P. No. 59 of 1915 against the same parties. In that execution petition the brothers claimed the property as the joint family property of themselves and Subba Rao. This claim was dismissed by the District Judge and by the High Court also on 23rd January 1920 and those decisions declared unequivocally that the property was Subba Rao's separate property. This execution petition' was dismissed on 18th November 1921 as the decree-holder elected to proceed with a fresh execution petition which he had filed. This was E.P. No. 16 of 1920 put in on 28th April 1920 for. the same relief against the same property and the property was attached as the property of the judgment-debtor, Subba Rao, in the hands of the counter--petitioners on 25th July 1922. To this execution application, for some reason or other, the third defendant, the father of Subba Rao, was not made a party. Taking advantage of this, he put in a claim petition against the attachment on the ground that he had had no notice. The hearing of this claim petition went on pari passu with a petition by the decree-holder to add the third defendant as a party in the execution petition. The District Judge dismissed the claim petition and added the third defendant as a party to the execution petition on 23rd April 1923. Against the order dismissing the claim petition the present appeal is filed. He has not appealed or moved in revision against the order adding him as a party to the execution petition, although in the course of the hearing before us, ho contended that that order was contrary to law because the Court could not bring him on in the execution petition more than 12 years after the date of the decree. We are here, however, strictly confined to dealing with the appeal against the order on the claim petition.

2. Now, the High Court's judgment on 23rd January 1920 made it clear to both parties that the true legal representative of Subba Rao was his father the third defendant. The third defendant does not deny that the property attached is the estate of Subba Rao in his hands and that it is liable to be proceeded against in execution for the decree amount. His claim, therefore, is not that he holds this property in any right of his own, but only as the legal representative of the judgment-debtor and the ground on which he put in his claim petition E. A. No. 166 of 1922, was not that the property was not that of the judgment-debtor and not liable for the decree, but the purely technical one that the holder of the assets of the judgment debtor had not been brought on record in the execution petition and given notice therein.

3. The District Judge went elaborately into the case and dismissed the claim petition on two grounds, first that the third defendant had already in a counter put in by him in E.P. No. 67 of 1913, on 18th December 1924 as guardian of two of the brothers of Subba Rao, Defendants Nos. 36 and 37, declared that he had no right to the property, and was, therefore, estopped from now putting forward the contrary; and second, that the estate of Subba Rao was sufficiently represented in the execution petition for purposes of execution by the brothers of Subba Rao even though they were not the true legal representatives.

4. As to the first point, it was disclosed during the course of the argument before us that the District Judge was in error in supposing that the counter of Defendants Nos. 36 and 37 was put in by the third defendant. They were then actually majors and put in their counter as such. The statement therein that their father has no right whatever to the property, therefore, was not made by the father at all and cannot form an estoppel against him.

5. As to the second point, the question whether the placing on record of a wrong legal representative will bind the estate in such execution proceedings was gone into to some extent before us, but we stopped the argument on that point as it seemed to us unnecessary to go into it further for the decision of the case.

6. We are of opinion that the third defendant's present petition was unsustainable under Order 21, Rule 58. The enquiry under that order is designed to cover cases) where a third party comes forward with! a claim to the property on the ground that it is not attachable as the property of the judgment-debtor or liable for the decree. Now, the third defendant has all along admitted and admits now that this property is the property of the judgment-debtor in his hands and liable for the decree. In such an enquiry the Court can release the property from attachment only if the conditions of Rule 60 are found, and that is not the present case at all. The Court could not then in law under this enquiry allow the third defendant's claim.

7. The petition of claim, however, was put in also under Section 47 of the Civil P.C., and possibly the question of want of notice might fall to be considered if it is taken to be a case under that section ; but, in considering whether an appeal from an order under that section should be allowed merely on the ground of want of notice in the execution petition, the Court must consider whether that want of notice has in any way prejudiced the appellant. In the present case we cannot conceive how it has prejudiced the appellant, nor is he able to suggest to us of what benefit it would have been to him if he had got the notice. He admits that the property is liable for the decree and has admitted it all along. He has been a party to two previous execution proceedings in which the property, which was in his possession all along, was attached as the assets of Subba Rao and he raised no objections to that, because he obviously could not, and has never denied that these assets were liable for the decree. So far back as 23rd April 1923, he was aided as a party to this execution petition and he has not yet sought to have that order set aside. He is obviously now endeavouring merely to take advantage of a mistake made by the decree holder in omitting his name from the execution petition-a mistake which, in view of his attitude throughout, cannot in any way profit him or get rid of the cardinal fact that the property attached is liable for the decree, unless the decree-holder's claim is barred by time. His own claim, therefore, is obviously unsustainable, for, even if he was on record in E.P. No. 16 of 1920 no plea which he could raise would avail him. The only object of putting him on record and giving him notice is to give him an opportunity to put forward any claim which he has in his own right to the property or any question of limitation barring the execution petition. As to the former he was in no better position than he had been when he was on record in the two previous execution petitions; and as to the latter there is no question of E.P. No. 16 of 1920, being time-barred.

8. No question of the continuance of attachment in E.P. No. 67 of 1913, for the benefit of E.P. No. 16 of 1920, need be raised here. In E.P. No. 16 of 1920 there was a valid fresh attachment on 25th July 1922 and E.P. No. 16 of 1920, was not time-barred.

9. We can therefore, see no reason to interfere with the order of the lower Court and dismiss this appeal with costs.